Gordon Clark: Appeal justices got it right on TWU ruling

The B.C. Court of Appeal’s welcome denunciation this week of the B.C. Law Society’s decision to bar future Trinity Western University law-school graduates from practising should be a wake-up call to the increasing number of activist-lawyers in Canada more interested in wielding their degrees to advance agendas than to practise their once-noble profession in a balanced and honourable way.

I won’t hold my breath.

The activists behind the demand that the law society put the TWU issue to a vote of its members in 2014 don’t appear to be people willing to accept that the strength of a pluralistic society like ours is diversity of opinion and the free expression of those opinions. You know, one of the rights enshrined in our Charter of Rights and Freedoms? You’d think all lawyers would get that.

These guys only believe in the diversity of opinions with which they agree. The same is true for their views on freedom of conscience and religion, also protected by the Charter. You’ll never hear liberals attack Muslims or Sikhs for some of their views and practices — they wouldn’t wish to appear racist or imperialist — but going after evangelical Christians for their views and actions in upholding them at a private university is apparently fair game. It’s not. We either believe in diversity or we don’t.

“A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal,” concluded the unanimous decision signed by Chief Justice Robert Bauman and four other justices.

Most Canadians, myself included, disagree strongly with TWU’s Community Covenant, the document at the centre of this debate, that demands that TWU community members abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” In other words, no sex outside of heterosexual marriage.

As someone who has long supported the LGBTQ community, I understand why it is deeply offended by Trinity’s covenant.

But as the appeal court justices put it, “While there is no doubt that the covenant’s refusal to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the LGBTQ community, and we do not in any way wish to minimize that effect, there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs … Disagreement and discomfort with the views of others is unavoidable in a free and democratic society.”

The justices noted that there is nothing in law that allowed the law society to place LGBTQ rights above the TWU’s Charter rights to freedom of conscience, religion, thought, belief, opinion, peaceful assembly and association. It found that the law-society process of somewhat gutlessly putting access to a fundamental right to a vote (after the society’s benchers had approved TWU’s law school) was inconsistent with the Charter. That’s how members of various ethnic groups were once banned from holding property in certain neighbourhoods, forced to use separate bathrooms, denied entry to university or the right to vote. As a colleague said, majority opinion can lead to pogroms.

“This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal,” noted the ruling.

In balancing rights, the court made the sensible points that while the “detrimental impact” of the law society’s ban on TWU grads was “severe” — they couldn’t work — the impact of TWU and its covenant on the LGBTQ community “would be insignificant in real terms.”

“For those who do not share TWU’s beliefs, there are many other options,” says the ruling. “TWU’s law school would add 60 seats to a total class of about 2,500 places in common law schools in Canada … some number of TWU’s students would likely be diverted from other faculties of law. As a result … the increase in the number of seats overall is likely to result in an enhancement of opportunities for all students.”

Isn’t that ironic. A TWU law school would open up space for LGBTQ law students across the country. Maybe the activists behind the attack on TWU should spend less time bullying others into accepting their world view and more time studying the law. Maybe then they too would one day be as wise as the B.C. Appeal Court justices in understanding essential justice and how to balance competing rights.

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